Converting Agricultural Buildings to Dwellings – an update

In February I explained how Planning Inspectors were dealing with appeals relating to the change of use of an agricultural building to housing.

The Government has decided that Councils are refusing too many of these applications, and made a few changes to the rules to make it easier, or at least clearer.

From 6 April 2018, you will be able to create up to five new dwellings, rather than three, with a total area of 465 square metres rather than 450 square metres.  Each of the five can be no larger than 100 square metres.

At the same time the Government has updated its Planning Practice Guidance (PPG) to clarify what building works are allowed under this permitted development right.

This specifies that the following building works are allowed where they are reasonably necessary to convert the building: “the installation or replacement of windows, doors, roofs, exterior walls, water, drainage, electricity, gas or other services to the extent reasonably necessary for the building to function as a dwelling house; and partial demolition to the extent reasonably necessary to carry out these building operations.”

It also specifies that: “Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls, which are not prohibited by Class Q.” If something is not development, it does not need planning permission.

The PPG still includes the caveat that: “It is not the intention of the permitted development right to allow rebuilding work which would go beyond what is reasonably necessary for the conversion of the building to residential use. Therefore it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right.” This relates to the Hibbitt High Court judgement I described in February.

The Government also announced that it would be relaxing the size limit on new agricultural buildings on larger farms (greater than 5 hectares) from 465 square metres to 1,000 square metres.

In the case of both conversions from agricultural to residential, and new agricultural buildings on larger farms, although these are permitted development, you still need to apply for prior approval. Vision Planning can do that for you. Please contact us to discuss further.

What does the Housing Delivery Test mean? And whatever happened to Housing Market Areas?

Has anyone wondered what the new Housing Delivery Test would mean in practical terms?

And has anyone spotted that the draft revised National Planning Policy Framework (NPPF) doesn’t mention Housing Market Areas?

The old NPPF, if we can call it that already, required local planning authorities “to use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area.”

The new draft says “strategic plans should, as a minimum, provide for objectively assessed needs for housing and other development, as well as any needs that cannot be met within neighbouring areas.”  The implication being that there will be a single housing requirement for each local authority area.  This coincides with the way that the standardised approach to determining housing need was proposed in September 2017.

In many areas, the housing market area (HMA) does not coincide with the local authority boundary.  Take Wiltshire and Swindon for example.

Wiltshire is a single unitary authority.  Its adopted Core Strategy sets a housing requirement across the authority of 42,000 dwellings between 2006 and 2026.  But, because the authority area is so large, it is split into three HMAs: East Wiltshire, with a requirement of 5,940 dwellings; North & West Wiltshire, with a requirement of 24,740 dwellings; and East Wiltshire, with a requirement of 10,420 dwellings.  To avoid you needing to search for the calculator, these are 297; 1,237 and 521 dwellings per year respectively.  The remaining 900 dwellings relate to West of Swindon, and meet Swindon’s needs rather than Wiltshire’s.

Swindon Borough is currently its own HMA.  Its Local Plan requires the delivery of 22,000 dwellings between 2011 and 2026, at a rate of 1,150 dwellings per year up to 2016, and 1,625 per year after that.

Appeal Inspectors have recently concluded that Swindon’s supply is less than 3 years, South Wiltshire HMA’s supply is a little below 5 years, the North and West Wiltshire HMA’s supply is slightly above 5 years, and East Wiltshire HMA’s supply is well above 5 years.  On that basis, the tilted balance in the current paragraph 14 is triggered in Swindon, sometimes in South Wiltshire, rarely in North and West Wiltshire and never in East Wiltshire, generalising somewhat!

Swindon and Wiltshire Councils are working together to produce a joint spatial framework into which their next local plans (covering the 2016 to 2036 period) will fit.

They have released a joint Strategic Housing Market Area Assessment which defines four housing market areas, relating to Swindon, Chippenham, Salisbury and Trowbridge.  The identified housing need in each is, respectively: 29,000; 22,250; 8,250 and 13,500 in total, or 1,450; 1,113; 413 and 675 dwellings per year.

This means that the two current local plans combined require the delivery of 3,725 per year between 2016 and 2026, and the emerging joint work proposes 3,650 dwellings per year between 2016 and 2036.

One of the repercussions of the joint strategy is that some of Swindon’s housing need could be met in Wiltshire.  This would clearly help bearing in mind Swindon’s poor housing delivery rate in recent years.

Now let’s look at the standardised housing need numbers released in September 2017.

If the methodology was unchanged from the draft, Wiltshire would be required to provide 2,227 dwellings per year, and Swindon 1,021 dwellings per year.  This totals 3,248 dwellings per year; substantially below both the Councils’ current target and their future targets based on their own independent evidence.

The new NPPF proposes that the tilted balance in the new paragraph 11 will apply if either the LPA cannot demonstrate a five year housing land supply or where delivery over the past three years was below 75% of the requirement.

The new NPPF then explains that a five year supply can be demonstrated where it has been produced through engagement with developers and considered by the Secretary of State, I assume via an appeal.  It seems unlikely that Swindon would pass this test; Wiltshire might if it was assessed authority wide.

The draft Housing Delivery Test methodology set out in the Housing White Paper proposed to use ONS housing delivery data to determine housing delivery in the past three years.  In the most recent three years for which data is currently available (2014-15 to 2016-17), Wiltshire has delivered an annual average of 2,253 dwellings; Swindon has delivered 569 dwellings annually, on average.

On the basis of the standardised housing need methodology, this means Wiltshire met 101% of its target; Swindon 56%.  Swindon would therefore not meet the Housing Delivery Test target of 75% and paragraph 11 would be triggered on this basis, as well as on the basis of 5 year supply.

However, the NPPF proposes “implementation” to transition the Housing Delivery Test in gradually.  This sets the target for November 2018 at 25% and for November 2019 at 45%.  Swindon would pass this test.

So we have a situation where Swindon has a housing delivery problem now.  In order to fix it, it is working with Wiltshire to define the overall housing need for the two authorities, and to define housing market areas in which to meet that need.  Wiltshire will probably take some of Swindon’s housing in order to help meet the overall need.

The regime now proposed in the new NPPF means that, while the tilted balance will probably be triggered in Swindon because of its low five year supply, it may well meet the Housing Delivery Test, during the implementation period at least.

On the same basis, the tilted balance is unlikely to be triggered across the whole of Wiltshire, even in the South Wiltshire HMA.

The new NPPF requires future plans to be based on the standard housing need methodology “unless there are exceptional circumstances that justify an alternative approach which also reflects current and future demographic trends and market signals.”  These exceptional circumstances appear to exist in Wiltshire and Swindon, and probably elsewhere too.

Draft Revised National Planning Policy Framework

The Government’s much vaunted revised National Planning Policy Framework was released in draft form today.

To avoid you needing to read it all, this blog summarises the main changes that affect housing supply and affordable housing provision.

Paragraph 14 and the Tilted Balance

Firstly, paragraph 14 is proposed to be reworded (and renumbered to paragraph 11 to keep us on our toes!).  It retains the presumption in favour of sustainable development but removes the previous odd reference to golden threads.

The new paragraph 11 proposes to specify that “strategic plans” (local plans of spatial development strategies) should meet objectively assessed needs for housing as a minimum, along with any needs that cannot be met within neighbouring areas.  The two exceptions from the current paragraph 14 are then repeated, reworded slightly and reordered, so we now have:

“unless:

  1. the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area; or
  2. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”

This is materially similar to the “tilted balance” set out in paragraph 14, with additional references to “the overall scale, type or distribution” of development.

The new paragraph 11 then deals with decision taking in much the same way.

“For decision-taking this means:

c) approving development proposals that accord with an up-to-date development plan without delay; or

d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or

ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”

Note the reference to “refusing” rather than “restricting” in i. above, and that the current paragraph 14 reference to “where the development plan is absent, silent or relevant policies are out‑of‑date” is proposed to be simplified.

The former footnote 9 (which becomes footnote 7) now additionally refers to “irreplaceable habitats including ancient woodland; aged or veteran trees”.

Triggering the Tilted Balance

Paragraph 75 explains that the “tilted balance” is triggered where “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (with the appropriate buffer), or where the Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years.”

The reference to “or” in this sentence means that local planning authorities need to pass both the 5 year supply requirement and the housing delivery test in order for the tilted balance not to be triggered.

The Housing Delivery Test referred to in paragraph 75 is proposed to be monitored initially as at November 2018.  Once in place, the “tilted balance” now set out in paragraph 11d is proposed to be engaged where delivery over the past three years was 75% below the requirement, from November 2020.  Transitional arrangements are proposed to cover the intervening period.  From November 2018 the target is 25%, and from November 2019 it is 45%.

Many authorities that cannot now demonstrate an adequate five year housing land supply will be able to meet the much less onerous Housing Delivery Test, at least during the transition.

Demonstrating a five year supply will require local planning authorities to work with developers to reach an agreed position, based on paragraph 76.

The Tilted Balance and Neighbourhood Plans

Gavin Barwell’s December 2016 Written Ministerial Statement regarding neighbourhood plans is dealt with in a new paragraph 14, which says that, where a neighbourhood plan that allocates land for housing is made, the proposal is not sustainable development if:

  • the LPA cannot demonstrate a 3 year housing land supply; or
  • where the new Housing Delivery Test indicates that delivery over the previous three years is below 45% of the requirement.

Housing Requirement

Paragraph 61 explains that the minimum number of homes to be specified in strategic plans should be based on a local housing need assessment produced using the “standard method” set out in national planning guidance, unless there are exceptional circumstances that justify an alternative approach.

Details of the methodology are not yet available, but they were detailed in draft here.

In terms of supply and delivery, the 5% and 20% buffers contained in paragraph 47 remain (now paragraph 74), although the former reference to “persistent under delivery” in relation to the 20% buffer is now replaced by “significant under delivery of housing over the previous three years”.  This is contrary to many appeal Inspectors who choose longer time frames to take account of the ebb and flow of the economic cycle.  From November 2018, the need for this buffer is assessed against the Housing Delivery Test.

A new 10% buffer is now added too, “where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan”

Paragraphs 66 and 67 require the local planning authority to specify the housing requirement to be met in a neighbourhood plan, ideally by defining this in the strategic plan or, if not, by specifying an indicative figure.

Housing Allocations

Paragraph 68 deals with the strategic allocation of housing sites.  Strategic plans should identify “specific, deliverable sites for years one to five” and “specific, developable sites or broad locations for growth for years 6-10 and, where possible, for years 11-15.”

Paragraph 69 encourages smaller housing sites by specifying that at least 20% of all allocations should be half a hectare or less.  Paragraph 79 suggests that neighbourhood planning groups should consider allocating smaller sites too.

Affordable Housing

The 2014 Written Ministerial Statement which restricted affordable housing on smaller sites is now included in paragraph 64.  However, this now specifies that affordable housing should not be sought on sites that are not “major”, i.e. ten or more.  Current Planning Practice Guidance limits affordable housing on sites of ten units or less.  This means that sites of exactly ten dwellings would need to provide affordable homes, where currently they don’t.

Paragraph 65 requires a provision of 10% of homes to be for affordable home ownership, as part of the overall affordable housing requirement.

Paragraph 72 promotes “entry level exception sites” suitable for first time buyers or first time renters (reference to “starter homes” is conspicuously absent!).  These developments need not be entirely affordable however.  The proposal is that they would comprise a “high proportion” of entry level homes, and they must be adjacent to existing settlements and proportionate in size to the settlement.

Rural Worker’s Dwellings

Do you need a new home for a worker on a farm or other rural business, to supervise livestock for example? There is a way.

Normally, new homes in the open countryside are restricted by planning rules. However, the National Planning Policy Framework (NPPF), introduced in March 2012, includes a number of exceptions in paragraph 55. These include:
“the essential need for a rural worker to live permanently at or near their place of work in the countryside”.

This means that if you can demonstrate an essential need for someone to live on your farm or other rural business, then it should be possible to get planning permission for a new home for them to live in.

Often this will be for a temporary three year period to start with, to check that the business is viable on an ongoing basis, and then this can be turned into planning permission for a permanent dwelling.

Before the NPPF was brought it, national planning rules relating to this issue were set by PPS7, Annex A. This has now been withdrawn.

PPS7 set two tests to help planners decide whether or not to give permission: a functional test and a financial test.

The functional test would determine whether it is essential for someone to be on site at most times, for example to care for animals or deal quickly with emergencies.

The financial test determined the size of dwelling that the rural business could sustain. In other words, the more profitable the business, the bigger the house, in very general terms.

Now that PPS7 has been replaced by the NPPF, Council planners and appeal inspectors often look to PPS7 Annex A for more detail, even though it has been withdrawn. A legal judgement suggests that they shouldn’t always do so. This case is known as “Embleton” (R on the application of Embleton Parish Council and Anor v Gaston (2013) EWHC 3631 (Admin)).

The Embleton case relates to the need for a rural worker’s dwelling on an existing arable farm, to which the landowner proposed to introduce cattle rearing.

The applicant made the case that the cattle rearing generated an essential need for a rural worker’s dwelling, and the Council granted planning permission.

Embleton Parish Council amongst others challenged the planning permission in the High Court. They argued that the calf rearing part of the business was not economically viable, and that it was implicit in paragraph 55 of the NPPF that for an essential need to be demonstrated it must be economically viable.

The judge in this case noted that:
“… the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular I do not accept … that the NPPF requires that the proposal is economically viable…  The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there.”

This may make it easier to get planning permission for a rural worker’s dwelling than in the past. If you would like to discuss this further, please get in touch.